Exterro's E-Discovery Breakdown // Mike Hamilton

The world of E-Discovery is constantly changing – let us break it down for you with a weekly dose of News, Resources, Case Law, and Humor, all written in a concise and easy to understand format.

Case Law Alert: “Bollixed” Legal Hold May Lead to Sanctions

Created on November 20, 2018

Director of Marketing Programs at Exterro

Jose Franklin v. Howard Brown Health Center (N.D. Ill. Oct. 4, 2018) provides a lesson learned for those who still don’t have a repeatable and consistent legal hold process. Sanctions may await especially when numerous custodians are involved and data subject to document retention policies must be preserved. Overview In this employment discrimination case, the plaintiff motioned for discovery sanctions against the plaintiff for not producing instant messages between key custodians about the claim. The two sides had numerous conflicts over the plaintiff’s request for instant messages from the defendant, including: Defendant waited... Read More

Case Law Alert: Sneaker Giant Holds Off Case Dismissal Over Discovery Misconduct

Created on November 9, 2018

Director of Marketing Programs at Exterro

Even in a case such as Adidas America, Inc. v. TRB Acquisitions LLC, with a long, hotly contested discovery process, the court will consider many factors in making a decision about whether to dismiss a case for discovery misconduct when the harm is irreversible (i.e., relevant data is spoliated and cannot be recovered).OverviewIn this trademark infringement case, the defendants moved for case dismissal based on the plaintiffs’ perpetuation of a fraud on the court via “egregious discovery-related misconduct.” The defendants contend that the following conduct by the plaintiffs should lead the court to grant... Read More

Case Law Alert: State Court Rules 3rd Party Not Allowed to Search Electronic Database

Created on October 26, 2018

Director of Marketing Programs at Exterro

Most litigation is conducted in state, not federal courts. While it’s important to be aware of the Federal Rules of Civil Procedure, states have their own rules about e-discovery, and attorneys practicing in those states must understand the rules that apply to them. In re Methodist Primary Care Grp. (Tex. 14th Dist. Ct. App. June 21, 2018) demonstrates the importance of knowing the rules and when you can push back against a lower court's motion.Overview: This case between two medical groups centers on an allegation of trade secret theft and interference with patient relationships... Read More

Case Law Alert: Altered Photos Lead to Case Dismissal

Created on October 12, 2018

Director of Marketing Programs at Exterro

While there are new FRCP rules that more clearly define when spoliation sanctions are warranted, the court is still afforded a variety of sources of authority to sanction parties for e-discovery misconduct. In Lawrence v. City of New York (S.D.N.Y. July 27, 2018), the court dismissed plaintiff's case as photos that were purported to be evidence of damages central to the claim were not, in fact, taken at the time of the improper search.  Overview: The defendants moved for case dismissal against the plaintiff based on the production of 67 photos that may... Read More

Friday Funnies: Exterro's E-Discovery Meme Series (Bart Tried Edition)

Created on October 12, 2018

Director of Marketing Programs at Exterro

At times it can be a little lonely being an e-discovery professional. Many people--even colleagues--can be a little vague on what it is you do for a living. If you've ever found yourself in a long, winding explanation of what it is you do, you deserve a reward... maybe even a cake like Bart's. Of course, I might suggest you steer truly curious people toward our Basics of E-Discovery Guide next time they ask, "What is E-Discovery?"And if you'd rather just have a laugh, you can always visit our entire catalog of E-Discovery Memes and... Read More

Case Law Alert: Special Master Recommends Default Judgement, and Why the Judge Said No

Created on September 28, 2018

Director of Marketing Programs at Exterro

Even when egregious, intentional e-discovery conduct leads to the spoliation of potentially relevant data, the court will be wary to issue case dispositive sanctions because of the amendments to FRCP 37(e). In Daniel Small v. University Medical Center (D. Nevada, Aug. 9, 2018), the special master delivered his report before the December 2015 amendments to the Federal Rules of Civil Procedure. The court, in its ruling four years later, declined to implement its recommendation of a dispositive default judgement, choosing instead to issue an adverse jury instruction and monetary fines.Overview: In this class claim for... Read More

Case Law Alert: Court Grants Request to Produce Social Media Files, Orders Supplementation Regarding FitBit Data

Created on September 14, 2018

Director of Marketing Programs at Exterro

In the past, social media and other new data types (i.e., activity tracker information) has not been widely requested in e-discovery activities. With increased social media use, however, that is changing, as in Hinostroza v. Denny's Inc. (D. Nev. June 29, 2018). Have processes in place to preserve and produce this data, especially in a world becoming more dependent on social media and new data types for communicating and tracking analytics.OverviewIn this slip and fall case, the defendant, Denny’s, moved to compel discovery of a variety of data sources. In discovery, the defendant... Read More